Antonio Juan Lucio-Reyes v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO JUAN LUCIO-REYES,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 15-72158
Agency No. A200-244-005
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 11, 2019**
Before: CANBY, GRABER, and MURGUIA, Circuit Judges.
Antonio Juan Lucio-Reyes, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s decision denying his application for asylum,
withholding of removal, relief under the Convention Against Torture (“CAT”), and
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUN 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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voluntary departure. Our jurisdiction is governed by 8 U.S.C. § 1252. We review
de novo questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008),
except to the extent that deference is owed to the BIA’s interpretation of the
governing statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th
Cir. 2004). We review for substantial evidence the agency’s factual findings,
Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014), and review de novo
claims of due process violations in immigration proceedings, Jiang v. Holder, 754
F.3d 733, 738 (9th Cir. 2014). We deny in part and dismiss in part the petition for
review.
In his opening brief, Lucio-Reyes does not challenge the agency’s
dispositive determination that his asylum claim is time-barred. See Corro-
Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013) (failure to contest
issue in opening brief resulted in waiver). Thus, we deny the petition for review as
to Lucio-Reyes’s asylum claim.
The agency did not err in finding that Lucio-Reyes failed to establish
membership in a cognizable social group. See Reyes v. Lynch, 842 F.3d 1125,
1131 (9th Cir. 2016) (in order to demonstrate membership in a particular group,
“[t]he applicant must ‘establish that the group is (1) composed of members who

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share a common immutable characteristic, (2) defined with particularity, and (3)
socially distinct within the society in question.’” (quoting Matter of M-E-V-G-, 26
I. & N. Dec. 227, 237 (BIA 2014))); see also Ramirez-Munoz v. Lynch, 816 F.3d
1226, 1229 (9th Cir. 2016) (concluding that “imputed wealthy Americans”
returning to Mexico does not constitute a particular social group); Delgado-Ortiz v.
Holder, 600 F.3d 1148, 1151-52 (9th Cir. 2010) (“returning Mexicans from the
United States” is too broad to qualify as a cognizable social group). Substantial
evidence supports the agency’s determination that Lucio-Reyes failed to establish
that any harm he experienced or fears in Mexico was or would be on account of a
protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010)
(applicant’s “desire to be free from harassment by criminals motivated by theft or
random violence by gang members bears no nexus to a protected ground”). Thus,
Lucio-Reyes’s withholding of removal claim fails.
Substantial evidence supports the agency’s denial of CAT relief because
Lucio-Reyes failed to show it is more likely than not he will be tortured by or with
the consent or acquiescence of the government if returned to Mexico. See Aden v.
Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
We reject as unsupported by the record Lucio-Reyes’s contentions that the

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BIA streamlined its decision and failed to provide a reasoned explanation. See
Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on a
due process claim).
Lastly, we lack jurisdiction to review the agency’s discretionary denial of
voluntary departure. See Corro-Barragan, 718 F.3d at 1177 (the court’s
jurisdiction over challenges to the denial of voluntary departure is limited to
constitutional claims or questions of law).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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